The defendant is sued in this action as surviving partner of J. L. Conklin, deceased, upon a loan of money made to the deceased for the firm. The plaintiff was offered and received as a witness, under the defendant’s objection, to prove the delivery of the money to the deceased partner, and his declarations that it was borrowed for the firm.
The principle intended to be embodied in section 399 of the code, as it now stands, is, that while a party may give evidence in his own behalf, he shall not speak of the transactions and declarations of the opposite party, who is deceased. Where the testimony of both the actors can be contrasted together, then the evidence will be received, otherwise not. The words of the exception in this section are, “except that a party shall not he examined against parties who are representatives of a deceased person, in respect to any transactions had personally between the deceased person and the witness.” These words may not have a literal application to the case of a surviving partner, but the principle the legislature sought to embody. in the section is obvious, and comprehends a witness or party who proposes to speak of transactions and conversations had with the deceased partner. In respect to an action by a surviving partner, he is to be *459regarded as a representative of the deceased. He does represent him as well as himself.
[Orange General Term, September 12, 1865.There should be a new trial, with costs to abide the event.
Judgment affirmed.
Brown, Zott, Scrugham and J. F. Barnard, Justices.]